Taunton Open Meeting Law violation causes concern for standards

Editor’s note: This is the second in a series in the spirit of Sunshine Week examining Open Meeting Law complaints in Greater Taunton, four years after an overhaul of Massachusetts’ “sunshine law.”

TAUNTON — An Open Meeting Law violation issued to Taunton’s city government last year demonstrates the fine line between sharing agenda items for upcoming public meetings and unlawfully deliberating about their content in secrecy.

The violation issued by the Massachusetts Attorney General’s Office stems from the handling of a 2011 letter to the City Council from a Taunton woman who has grown a reputation for her accusations of racial discrimination within the city’s government. While the content of her letter played no role in the ruling from the attorney general’s office, an email discussion held between City Councilors about how to address the letter during a weekly meeting was found to be in violation of the Massachusetts Open Meeting Law. Assistant Attorney General Jonathan Sclarsic wrote in his findings that as a result of the violation, “we order the Council’s immediate and future compliance” with the Open Meeting Law.

The complaint that led to the violation was among nine unique Open Meeting Law complaints filed against municipal boards in the Taunton area since 2010, including two in Taunton, five in Rehoboth and two in Dighton. Out of those nine complaints, five resulted in rulings by the Massachusetts attorney general’s office that the boards were breaking the so-called sunshine law.

Statewide, according to an investigation by The Patriot Ledger of Quincy, there were 500 Open Meeting Law complaints filed with the state attorney general’s office since the office took over enforcement of the law in 2010. According to records of the filings and consequent rulings, the AG’s office found public boards in the state had violated the law in 221 of these cases.

The Ledger review showed that if public boards shut out the public when they shouldn’t, or deliberated through email, they might have to take a refresher course in the state’s Open Meeting Law. And if they deliberately skirt the law that’s intended to ensure the public’s business is done in public, they may face a $1,000 fine. But that almost never happens.

Based on records of the 221 cases found in violation of the Open Meeting Law, the AG only ordered fines in three cases. Most others received warnings, even in cases of what the office deemed to be serious violations of the public’s right to know.

Advocates for open government have called the Massachusetts Open Meeting Law one of the weakest in the country since legislators overhauled it four years ago.

In the aforementioned Taunton case, the woman accusing the city government of racial discrimination hand-delivered a letter to the Taunton city clerk, requesting that it be placed on the agenda for the City Council’s Oct. 25, 2011, meeting. Then-Taunton Mayor Charles Crowley sent out an email to eight of the nine council members, informing them that the woman was “making wild claims that are untruthful,” according to the AG’s summary of the violation.

Following Crowley’s message, council members discussed by email how to treat the woman’s letter during the meeting, whether its content was appropriate and the source of the content of the letter, the finding said. However, only three councilors actively participated in the online discussion, including David Pottier, who “replied-to-all” criticizing the content of the woman’s letter, and Sherry Costa Hanlon, who asked for a law department opinion about whether to take the matter in executive session. Former Councilor Daniel Barbour also contributed to the email discussion, the finding said.

In his conclusion, Sclarsic wrote that the City Council’s email discussion violated part Open Meeting Law which prohibits public bodies with a quorum from speaking in private — including electronic communication — while noting that it was not done intentionally. Sclarsic’s conclusion said that he and others at the AG’s office “acknowledge that it can be a (sic) difficult to determine when a communication serves an administrative function and when it contains substantive discussion in violation of the law.”

Sclarsic said his office’s best advice continues to be “that public bodies not communicate over email at all except for distributing meeting agendas, scheduling meetings, and distributing documents created by non-members to be discussed at meetings, which are administrative tasks specifically sanctioned under the Open Meeting Law.”

Costa Hanlon said that the city’s current law department defended the email discussion as legitimate under the Open Meeting Law. Costa Hanlon said she still believes that the City Council did not violate the sunshine law.

“It was a matter of what was to be put on the agenda, not a discussion,” said Costa Hanlon. “Because there was no fine, the city wasn’t interested in appealing. It would have been cost prohibitive. It’s a difference of opinion.”

Costa Hanlon also applauded the overhaul of the sunshine law in 2009, which moved responsibility for enforcement from the local district attorneys to the attorney general. Before that, the Open Meeting Law’s enforcement “was convoluted,” she said.

The situation, in Pottier’s point of view, brings to light questions about the law’s effectiveness in simultaneously providing both transparency and allowing for efficiency in municipal government.

“I would hope there would be a happy medium where the law could fulfill both needed goals, allowing the council to be efficient as it can, while still keeping public in loop of what’s going on,” Pottier said. “But as of now, I don’t think there really is one.”

Pottier pointed out that the Open Meeting Law allows the nine-person City Council to hold private discussions among themselves as long as they don’t meet a quorum. Pottier said the law is “not up to speed” with the modern communication technology.

“I can send out emails to three others members of the council, but just not all nine,” Pottier said. “That doesn’t make any sense, really. Does it? I think those laws, while certainly good-natured and have best interest of the public, sometimes run up against having effective and efficient government.”

Pottier also questioned why the state Legislature is exempt from the Open Meeting Law.

“There needs to be uniform standard,” he said. “Why should we be held to higher standard then reps and senators on Beacon Hill? I’m guessing they use the technology of today to get stuff done quickly.”

Pottier said that, personally, he’d be comfortable with having any such emails “on the front page” of the newspaper. Pottier said he would be for a system that publishes all emails between he and other city councilors, “just to convince the public that nothing nefarious is going on,” but he added that such a concept doesn’t have support locally.

Critics: State Sunshine Law lacks teeth• Open government advocates say four years after an overhaul of the law, Massachusetts’ sunshine law — or Open Meeting Law — remains among the weakest in the country.• Massachusetts adopted its first Open Meeting Law in 1958. The law requires public bodies, like boards of selectmen, to hold meetings in public unless discussing topics within a strict set of exemptions, like bargaining with unions and ongoing litigation.• Boards must also post notices for public meetings, and the topics to be discussed.• The state Legislature exempted itself from the law.• Lawmakers updated the statute in 2009, moving responsibility for enforcement from the local district attorneys to the attorney general beginning in July 2010. But critics say the reform weakened the law by allowing fines only in cases where the board intentionally violated the law. The previous law did not have that requirement.

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